The Queen v Kylie Anne Bullock
[2013] ACTSC 274
•28 November 2013
THE QUEEN v KYLIE ANNE BULLOCK
[2013] ACTSC 274 (28 November 2013)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Witnesses – failure of witness to attend Court pursuant to subpoena to give evidence at trial – witness’s life difficult at relevant time because of past domestic violence –witness believed her evidence would not be important, or that the information given to prosecutor could be used even in her absence – witness reluctant to give evidence because accused was her cousin – failure to attend without just cause or reasonable excuse – Supreme Court Act 1933 (ACT), s 70A(2) – imprisonment and fine imposed.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, Arrests, Search, Seizure and Incidental Powers – failure of witness to attend Court pursuant to subpoena to give evidence at trial – failure to attend was without just cause or reasonable excuse – whether options available under Crimes (Sentencing) Act 2005 (ACT) apply in relation to penalties available under Supreme Court Act 1933 (ACT), s 70A(2).
Supreme Court Act 1933 (ACT), s 70A(2)
Crimes (Sentencing) Act 2005 (ACT)
EX TEMPORE JUDGMENT
No. SCC 30 of 2012
Judge: Penfold J
Supreme Court of the ACT
Date: 28 November 2013
IN THE SUPREME COURT OF THE )
) No. SCC 30 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:
THE QUEEN Applicant
AND:
KYLIE ANNE BULLOCK Respondent
ORDER
Judge: Penfold J
Date: 28 November 2013
Place: Canberra
THE COURT FINDS THAT:
Ms Trewartha’s failure to attend court on 25 November 2013 was, for the purposes of s 70A(2) of the Supreme Court Act 1933 (ACT), without just cause or reasonable excuse.
THE COURT ORDERS THAT:
Ms Trewartha is to be imprisoned for one day (being time already spent in custody).
Ms Trewartha is fined $250, with three months to pay.
Background
Ellie Trewartha was subpoenaed to attend court on Monday 25 November 2013, to give evidence in the trial of Kylie Bullock, who is her cousin, on two counts of assault occasioning actual bodily harm. There is no dispute that she did receive a subpoena, and that she knew, including from discussions with staff of the Director of Public Prosecutions (DPP) as recently as 24 October 2013, that she was required to come to court that day.
I note first that the evidence that Ms Trewartha could have given at the trial (assuming that it had reflected what she had told the DPP staff at the most recent discussion of her evidence) would, as it turns out, have been potentially significant. Having heard all the evidence in the trial, I don’t think there is any question about that.
Ms Trewartha didn’t turn up on the Monday, and I issued a warrant for her arrest. I understand that there were attempts by the police to locate her on the Monday, and on the basis of what is before me, it seems that the police might, in fact, have been looking in the wrong place. On the other hand, it also seems from Ms Trewartha’s evidence that she was not in fact at home from about 8.30 am on the Monday until around 3.00 pm that day. So the fact that the police could not locate her does not necessarily establish that she was avoiding anyone.
On the other hand, I do not know how it was that the police eventually found her last night – the evidence is all fairly vague.
Ms Trewartha gave evidence before me, which was confirmed by a staff member from the Northside Community Service who also gave evidence, that she and her five-year-old son moved several months ago to new accommodation; that accommodation was provided by a program conducted by that Service for women and children who are escaping domestic violence and who have become homeless because of that. The Northside Community Service worker gave evidence that Ms Trewartha was suffering ongoing stress related not only to her domestic history but also to issues with other tenants in the area of her current accommodation that “are also quite traumatic for [Ms Trewartha] at the moment”.
Ms Trewartha gave the following evidence:
Did you think about coming to court or‑ ‑ ‑?‑‑‑Yes, it crossed my - it - yes, I did think about it but it wasn’t on my mind all day like other things are on my mind all day.
What sort of things?‑‑‑Like - I don’t know, 100 things will go to my mind all day - all day, sort of like once you go through trauma, you - you don’t really think very straight and you’re just all over the place sort of thing.
Ms Trewartha gave various explanations for why she didn’t turn up to give evidence in Ms Bullock’s trial, including:
(a)that things in her life were very difficult at the time;
(b)that because of other problems, she “didn’t put [her] subpoena first in front of ... [her] day to day problems that [she had] been dealing with”;
(c)that she had persuaded herself at least that the evidence she could give would not be significant in the case or alternatively, or perhaps as well, that the information that she had given the DPP staff when she last spoke to them could simply be used by them in the trial without her being present.
In fact, as I have already said, the information that Ms Trewartha had provided would have been significant in this trial. On the other hand, it is possible to see, at least in relation to the matters that she was asked about, why she might have thought that her evidence wasn’t significant.
However, the other matter that has come out from time to time in the course of today’s proceedings, and that was not disputed by Ms Trewartha in general terms, is an indication that Ms Trewartha was unwilling, or at least uncomfortable, about the prospect of giving evidence because the accused Ms Bullock was her cousin.
Having regard to the explanations offered for her failure to attend, I am satisfied for the purposes of s 70A(2) of the Supreme Court Act 1933 (ACT) that Ms Trewartha’s failure to attend court was without just cause or reasonable excuse.
The question then is what penalty ought to be imposed, and I note first that refusing or failing to attend court, in particular, as appears to have been the case here, consciously failing to attend court to give evidence under a subpoena, is a serious matter in any situation. It is, in my view, particularly serious in this case given the importance of Ms Trewartha’s evidence and the fact that the case that we are dealing with involves violence having been perpetrated against a woman who certainly was, and I understand still is, a close friend of Ms Trewartha’s.
In terms of what might be the appropriate penalty, s 70A identifies three options, one being a fine not exceeding $5,000, the second being an order for imprisonment for no longer than six months, and the third being a combination of both of those penalties.
We have discussed in court the question whether the options provided by s 70A are, in fact, expanded by the provisions of the Crimes (Sentencing) Act2005 (ACT) to include, for instance, the possibility of imposing a sentence of imprisonment and then suspending it. My inclination earlier was to take the view – and I understand there was no argument about this from either counsel – that it would be appropriate to assume that the options provided under the Crimes (Sentencing) Act were available so that, for instance, a sentence of imprisonment, if imposed, could nevertheless be suspended or ordered to be served by periodic detention.
However, having heard Ms Trewartha’s evidence, and noting in particular that it appears (and certainly in the absence of any contrary evidence I must operate on that basis) that Ms Trewartha has no criminal history, I have come to the conclusion that in these circumstances, it would be appropriate simply:
(d)to order, in effect, that Ms Trewartha be imprisoned for one day, being the day that she has already served in custody after being arrested on the warrant; and
(e)to emphasise just once more the seriousness of this matter, but on the other hand recognising Ms Trewartha’s limited financial situation, to impose also a fine of $250, for which I will provide three months time to pay as sought on behalf of Ms Trewartha.
I do want to say to you, Ms Trewartha, that, as I have indicated, this is a very serious matter, and I hope that you will bear this in mind and understand that any such subpoena is to be taken seriously in the future, because certainly, if you were to be involved in a similar incident again, you might well find yourself spending serious time in custody. I also want to say that, should it be relevant, you should ensure that your friends and associates are aware of the importance of answering subpoenas when they are served.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date:
Counsel for the applicant: Ms A Knibbs
Solicitor for the applicant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr D Perkins
Solicitor for the respondent: Legal Aid ACT
Date of hearing: 28 November 2013
Date of judgment: 28 November 2013
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